Belisle v. State, CR-02-2124.

CourtAlabama Court of Criminal Appeals
Citation11 So.3d 256
Docket NumberCR-02-2124.
PartiesRick Allen BELISLE v. STATE of Alabama.
Decision Date02 March 2007
11 So.3d 256
Rick Allen BELISLE
v.
STATE of Alabama.
CR-02-2124.
Court of Criminal Appeals of Alabama.
March 2, 2007.
Rehearing Denied April 20, 2007.

[11 So.3d 268]

Linda K. McKnight, Moundville; and Charlotte Morrison and Randall L. Susskind, Montgomery, for appellant.

Troy King, atty. gen., and Margaret Mary (Missy) Fullmer, asst. atty. gen., for appellee.

McMILLAN, Judge.


The appellant, Rick Allen Belisle, was convicted of murdering Joyce Moore during the course of a robbery and a burglary, offenses defined as capital by §§ 13A-5-40(a)(2) and 13A-5-40(a)(4), Ala.Code 1975. The circuit court sentenced Belisle to death. This appeal followed.

11 So.3d 269

The circuit court made the following findings of fact in its order sentencing Belisle to death:

"The Court finds the facts of this case to be that in May of 1999, the defendant, Rick Allen Belisle, and his wife and codefendant, Annette Belisle, were in desperate need of money and they together planned to burglarize the T & J [Kwik] Mart at the intersection of Highway 205 and 431 in Boaz, Alabama. Annette Belisle had worked at the store for a period of time and Rick Belisle had come there on occasion and assisted Annette Belisle. Both Annette Belisle and the defendant had access to the combination of the floor safe where the money was kept. The two had been to the store and had been seen in the store a couple of times on nights just prior to the incident. Rick and Annette Belisle had been `casing' the store and finalizing their plans for the burglary. On May 19, 1999, the defendant and Annette Belisle went to the store just prior to closing and were seen in the store by others. Annette Belisle had on other occasions distracted the cashier working in order for Rick Belisle to check out a good place to hide and wait for the store to close. On one occasion another cashier noticed Rick Belisle had gone to the bathroom for an extended period of time and she became suspicious of them. On the night of May 19, 1999, the defendant hid in the ceiling of the bathroom and Annette Belisle left the store with the knowledge that Rick Belisle was hiding in the bathroom ceiling. After Joyce Moore closed the store, Rick Belisle confronted Joyce Moore, viciously attacked her with a large can of peas and a metal pipe which was part of an electric fan stand. The victim endured extreme pain and suffering before she died. After she was beaten to the point she was dying and lying face down on the floor in her own blood, she would raise up on her arms begging for help, and the defendant hit her again several times with the metal pipe, knocking her arms under her so she could not push up. Joyce Moore then died as a result of the injuries inflicted on her by Rick Belisle. He left the store, went home and told Annette Belisle about the events at the store. Both Annette and Rick Belisle fled the State and went to Missouri where law enforcement officers found them after investigation. Rick Belisle stated in an unsolicited response to an investigator during a phone conversation, `You know what happened in Alabama was an accident.' Then defendant in the same conversation denied any wrongdoing."

(C.R. 506.)

The State's evidence also tended to show the following: Dr. Stephen Pustilnick, the coroner who conducted the autopsy on Moore's body, testified that she died of blunt-force trauma to the head. She sustained six blows to the front of her head and approximately eight blows to the back of her head. The blows were consistent, he said, with having been made by a flat rod or a can containing food. A six-pound can of peas was identified as one of the murder weapons.

In exchange for a 20-year sentence, Annette agreed to testify against her husband Rick Belisle. Annette testified that, before the murder, she and her husband were both out of work, had no money, and could not buy food. Approximately two weeks before the murder, she said, she and Rick discussed robbing the T & J Kwik Mart convenience store. She knew the store because she had worked there and had quit working at the store about three weeks before the murder. She said that two days in advance of the incident, she and Rick went to "case" the store. On May 19, 1999, they both went to the store

11 So.3d 270

and talked with Moore. She said that Rick left and came back in the store while Moore was busy with customers. Annette said that Rick never came out of the store, and that she left the store at around 10:00 p.m. and walked back to their house to wait on Rick. Rick got home, she said, at around 12:30 a.m. and told her that he had killed Moore. He told her that Moore was choking on her own blood and tried to get up, so he kept hitting her until she stopped. Rick had $898 in cash and $70 in rolled change when he came back to their house. Annette said that they flushed the coin wrappers down the toilet and put the change in a coffee can. The next day, she went to a liquor store and a grocery store and spent some of the cash. About two days after the murder, she said, they sold most of their belongings and went to Missouri, where they both had family.

Defense counsel conducted an extensive cross-examination of Annette that consisted of 353 pages of the transcript. Counsel attempted to impeach her with discrepancies in her statements to police and her trial testimony. State witnesses corroborated portions of Annette's testimony. Witnesses testified that they saw the couple at the store two different times in the two days before the murder. Another testified that on the evening of the murder he saw Annette walking down the road from the Kwik Mart with a dog. Others testified that Rick and Annette had no money and had tried to borrow money to buy food and that Annette spent large sums of money on the day after the murder. Also, with Annette's assistance, police recovered some of the items taken from the store. Coin wrappers were also recovered from the septic tank connected to the Belisle home in Boaz.

Belisle's defense was to cast the blame for the murder on Annette. The defense presented the testimony of three inmates who had been incarcerated with Annette. Kitty Hyatt, a fellow inmate at the Marshall County jail, testified that Annette told her that she was present at the murder but that she did "not do the initial act." Valeire Wheeler, an inmate at Tutwiler Prison, testified that she overheard Annette talking to another inmate about the murder, and that Annette said that she hit Moore with a can and that the man with her hit Moore with an iron bar. Juanita Pitts, another inmate at Tutwiler, testified that Annette told her that she struck the initial blow with a can and asked Rick to help her continue the attack.

The jury convicted Belisle of both counts of capital murder charged in the indictment. Belisle waived his sentencing hearing before a jury, and the circuit court ordered that a presentence report be prepared. Belisle also waived the presentation of mitigating evidence. After a hearing, the trial court sentenced Belisle to death. This appeal, which is automatic in a death case, followed. See § 13A-5-55, Ala.Code 1975.

Standard of Review

Belisle has been sentenced to death. According to Rule 45A, Ala.R.App. P., this Court must review the record of the lower court proceedings for plain error. Rule 45A, Ala.R.App.P., states:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

The plain-error standard of review is to be used sparingly and "`"`solely in those circumstances in which a miscarriage of justice would otherwise result.'"'" Centobie

11 So.3d 271

v. State, 861 So.2d 1111, 1118 (Ala.Crim. App.2001), (quoting other cases).

Guilt-Phase Issues
I.

Belisle argues that he was denied his constitutional right to a speedy trial, in violation of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), because of the four-year delay between his arrest and his capital-murder trial.

Moore was murdered in May 1999, Belisle was indicted and arrested in June 1999, and he was tried in July 2003. The delay between Belisle's arrest and his capital—murder trial was 49 months.

As the Alabama Supreme Court stated in Ex parte Walker, 928 So.2d 259, 263 (Ala.2005):

"An accused's right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by Art. I, § 6, of the Alabama Constitution, 1901. As noted, an evaluation of an accused's speedy-trial claim requires us to balance the four factors the United States Supreme Court set forth in Barker [v. Wingo, 407 U.S. 514 (1972)]: `[l]ength of delay, the reason for the delay, the defendant's assertion of [her] right, and prejudice to the defendant.' 407 U.S. at 530, 92 S.Ct. 2182 (footnote omitted). See also Ex parte Carrell, 565 So.2d [104] at 105 [ (Ala.1990) ]. `A single factor is not necessarily determinative, because this is a "balancing test, in which the conduct of both the prosecution and the defense are weighed."' Ex parte Clopton, 656 So.2d [1243] at 1245 [ (Ala.1985) ] (quoting Barker, 407 U.S. at 530, 92 S.Ct. 2182). We examine each factor in turn."

(Footnotes omitted.)

A. Length of delay. As the Ex parte Walker court stated concerning the length of the delay:

"In Doggett v. United States, the United States Supreme Court explained that the first factor—length of delay—`is actually a double enquiry.' 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520(1992). The first inquiry under this factor is whether the length of the delay is `"presumptively prejudicial."' 505 U.S. at 652, 112 S.Ct. 2686(quoting Barker, 407 U.S. at 530-31, 92 S.Ct. 2182).A finding that the length of delay is presumptively...

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